HR Support on Reasonable Accommodation (ADA Laws)

Editor's Note: The duty to accommodate under the ADA is a requirement, not an option.

Overview: The Americans with Disabilities Act (ADA) requires that employers provide reasonable accommodations to qualified individuals with disabilities, unless doing so would cause an undue hardship on the employer's business.

An employer's duty to make reasonable accommodations extends to all employment decisions, and it applies to job applicants and full- and part-time employees. Examples of accommodations include:

Readers or sign language interpreters;

Reallocation of marginal job duties;

Light duty (on the same basis that the employer offers it to similarly situated employees);

Telecommuting;

Modified training materials;

Different work schedule (e.g., different work hours, part-time schedule); or

Medical leave of absence.

There are times when an employer may be excused from providing an accommodation. However, each accommodation request is fact-specific and the reasonableness of an accommodation should be considered on a case-by-case basis.

Employers should opt to work something out when an employee requests an accommodation due to a disability. An employer that meets with an employee and discusses accommodation possibilities (i.e., engages in the interactive process) will be in a much better position if it is sued for failure to accommodate.

Trends: The Equal Employment Opportunity Commission (EEOC) has entered into multi-million dollar settlements with employers that inflexibly and universally apply a leave limit policy (such as no-fault attendance policies) without looking at the reasonable accommodation requirements of the ADA.

An employer that has a leave policy that calls for the automatic termination of employees who exhaust a specified period of available time off is looking for trouble from the EEOC. The EEOC expects to issue revised guidance on the topic of reasonable accommodations and leaves of absence under the ADA soon.

The federal courts have been reviewing whether an employer must, as a reasonable accommodation, pass over a more qualified individual, and assign an employee with a disability to a vacant job position (so long as the employee with a disability meets the minimum qualifications for the job) unless the employer can show that it would be an undue hardship to do so.

The Supreme Court has not addressed this issue so employers will need to be guided by the law in the state in which their business operates.

Minnesota employers that have 21 or more employees in at least one site of employment and seek to inform employees of the availability of reasonable accommodations for health conditions related to pregnancy or childbirth should consider including this model policy statement in their handbook.

The District of Columbia passed the Protecting Pregnant Workers Fairness Act of 2014, which requires employers to provide reasonable accommodations to employees whose ability to perform their job is limited by pregnancy, childbirth, a related medical condition or breastfeeding.

Delaware employers with four or more employees that seek to inform employees, including supervisors, that employees may be entitled to a reasonable accommodation for known limitations relating to pregnancy, childbirth or related conditions (including lactation) should consider including this model policy statement in their handbook.

New York employers that have four or more employees, have employees working in New York City and that are seeking to inform employees, including supervisors, that the company will provide reasonable accommodations to New York City employees with needs related to pregnancy, childbirth or a related medical condition should consider including this model policy statement in their handbook.

West Virginia employers with 12 or more employees in West Virginia for each working day in each of 20 or more calendar weeks in the current or preceding year should consider including this model policy statement in their handbook

Employers covered by the Americans with Disabilities Act (ADA) and seeking to advise employees of their right to seek accommodations based on disability should consider including this model policy statement in their handbook.

Maryland employers with 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding year are required to include this model policy statement in their handbook.

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